November 14, 2011

Appeals Court Rejects DOJ Rehearing Request In Death Row Case

A divided federal appeals court in Washington on Monday rejected the U.S. Justice Department's request that the full court hear a dispute over a death row inmate's demand to review law enforcement records.

The U.S. Court of Appeals for the D.C. Circuit voted 5 to 3 to turn down DOJ's request for a full-court rehearing. The Justice Department had asked the entire court to vacate a panel decision that said the state prisoner, Lester Bower Jr., should have access to certain FBI documents in his quest to win his freedom.

Bower, sentenced to death in Texas in 1984, maintains he wasn’t responsible for a quadruple homicide. Bower blames four alleged drug dealers in Oklahoma; one of the men has since died.

The FBI said in response to a public records request from Bower's counsel that it could neither confirm nor deny whether it had documents on the men Bower blames for the murders.

In its en banc petition, the Justice Department said the appellate panel decision will likely have “significant adverse consequences” in future cases. For instance, the government's legal team, including said the panel decision could require federal agencies and federal trial judges to second-guess earlier court decisions and habeas corpus proceedings.

Chief Judge David Sentelle, joined by judges Brett Kavanaugh and Janice Rogers Brown, voted to grant the DOJ petition for en banc review. Judges Karen LeCraft Henderson, Judith Rogers, David Tatel, Merrick Garland and Thomas Griffith voted against picking up the case. (Tatel and Rogers were the majority on the panel; Kavanaugh voted in dissent against Bower.)

Bower’s conviction and death sentence have been upheld on appeal and in state and federal habeas proceedings. He is pursuing a DNA proceeding in state court in Texas in the hope to prove his innocence. Two witnesses have come forward since Bower’s trial to claim that four Oklahoma drug dealers committed the murders for which Bower was convicted.

A lawyer for Bower in the D.C. Circuit, Morgan, Lewis & Bockius litigation partner Peter Buscemi, was not immediately reached for comment Monday afternoon. The Justice Department's Civil Division did not provide immediate comment on the ruling.

Assistant U.S. Attorney Rhonda Fields argued for the government in the D.C. Circuit. William Miller, a spokesman for the U.S. Attorney's Office for the District of Columbia, declined to comment.